Hukle v. City of Kansas City, 46892

• Decision Date: 14 July 1973
• Docket Number: No. 46892,46892
• Citation: 212 Kan. 627,512 P.2d 457
• Parties: S. R. HUKLE and Robert L. Hughes, Appellees, v. CITY OF KANSAS CITY, Kansas, a municipal corporation, Defendant, and Argentine Action Group, by and through William E. Braden, et al., Intervenor Appellant.
• Court: Kansas Supreme Court

Page 457

512 P.2d 457

212 Kan. 627

S. R. HUKLE and Robert L. Hughes, Appellees, v. CITY OF KANSAS CITY, Kansas, a municipal corporation, Defendant and Argentine Action Group, by and through William E. Braden, et al., Intervenor Appellant.

No. 46892.

Supreme Court of Kansas.

July 14, 1973.

Syllabus by the Court

1. Under K.S.A.1972 Supp. 60-224(a) the right to intervene in an action depends on the concurrence of three factors: (1) Timely application; (2) a substantial interest in the subject matter; and (3) lack of adequate representation of the intervenor's interests.

2. Owners of land in such close proximity to land sought to be rezoned as to be affected by the rezoning may, in a proper case, be permitted to intervene as parties in a proceeding to review a decision of the zoning body.

3. The requirement for 'timely application' to intervene in an action as that term is used in K.S.A.1972 Supp. 60-224(a) has no application until such time as adequate representation ceases.

4. Where an application to intervene is timely made intervention should be allowed after a final decree where it is necessary to preserve some right which cannot otherwise be protected. One of the rights which cannot be protected without intervention is the right of appeal.

5. Intervention presupposes the pendency of a suit in a court of competent jurisdiction, and one who voluntarily becomes a party thereto, impliedly, if not expressly, accepts the proceedings as he finds them at the time of the intervention; the intervenor is, for all intents and purposes, an original party. The intervenor is as fully bound by the record and as fully entitled to avail himself of it as if he had been an original party thereto.

6. The provisions of K.S.A. 60-224(a) are to be liberally construed in favor of intervention.

7. The governing body of a city has the right to prescribe zoning, the right to change zoning and the right to refuse to change zoning. The power of the reviewing court is limited to determining (1) the lawfulness of the action taken, that is, whether procedures in conformity with law were employed, and (2) the reasonableness of such action. As to the second, the court may not substitute its judgment for that of the governing body and should not declare the action of the latter unreasonable unless clearly compelled to do so by the evidence. There is a presumption that the governing body acted reasonably and it is incumbent upon those attacking its action to show the unreasonableness thereof.

8. A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal's action was within the scope of its authority. In reviewing a district court's judgment, as above, this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal's action as does the district court.

9. Prevention of undue population concentration in a given area is a factor to be considered in changing zoning classification.

10. Where the rezoning decision before the zoning authority is fairly debatable a reviewing court may not substitute its judgment for that of the zoning authority in order to change the decision on the debate.

11. Highest and best use of a particular tract of land is only one of the criteria to be considered in determining zoning classification.

12. In an action under K.S.A. 12-712 to test the reasonableness of a refusal by a board of city commissioners to rezone a tract of land, wherein two applications for intervention by a group of adjoining landowners were denied, the record on appeal is examined and it is held: The trial court erred in (1) denying the second application for intervention and (2) ordering rezoning.

John H. Fields of Carson, Mahoney & Fields, of Kansas City, argued the cause and was on the brief for appellant.

Edward H. Powers, Kansas City, argued the cause and was on the brief for appellees.

HARMAN, Commissioner:

This is a zoning controversy. Challenged here is the propriety of a district court order finding that the refusal of the city of Kansas City, Kansas, to rezone a tract of land was unreasonable and arbitrary and directing the rezoning applied for.

The appeal is by a group of people, known as the Argentine Action Group, who own land adjoining or close to the tract sought to be rezoned and who oppose the requested rezoning. The group twice sought, unsuccessfully, a district court order permitting them to intervene in the proceedings. A threshold question is presented whether it has any right to prosecute this appeal and test the district court rezoning order on its merits.

The facts essential to an understanding of the intervention issue are not in dispute.

The owners of the tract sought to be rezoned, S. R. Hukle and Robert L. Hughes, appellees herein, filed their application for rezoning with the city. The planning commission recommended that the proposed rezoning be denied and the board of city commissioners denied it. The landowners then brought the proceeding to the district court of Wyandotte county for review pursuant to K.S.A. 12-712. There the refusal to rezone was defended by the city attorney on behalf of the city. At this point the dates of further events become significant.

October 20, 1971, the trial court found the city's refusal to rezone was unreasonable and arbitrary.

October 26, 1971, the city filed a motion for new trial.

November 3, 1971, the Argentine group, appellant herein, filed its first motion to intervene in the action.

December 10, 1971, both the foregoing motions were overruled.

December 30, 1971, the city filed notice of appeal to this court. The same day the Argentine group filed notice of appeal from the order denying its motion to intervene.

Thereafter the parties secured extensions of time and pursuant thereto made timely filings of designation of record, statement of points and additional designation of record.

June 21, 1972, the city filed a motion to dismiss its appeal (up to this point it appears the Argentine group had been assisting the city attorney in the processing of the appeal).

June 22, 1972, the Argentine group filed a second motion to intervene and asked for a reasonable extension of time within which to file the record on appeal which was due to be filed in this court on June 30, 1972.

July 28, 1972, the trial court denied the Argentine group's motion to intervene and dismissed the appeal.

August 25, 1972, the Argentine group filed notice of appeal from the order denying its second motion to intervene.

September 13, 1972, upon the application of the Argentine group this court reinstated the appeal, its consideration on the merits to be contingent on the group's right to intervene in the proceeding. All appeals were consolidated.

Appellant Argentine Action Group first contends the trial court erred in denying its first motion to intervene. In Rawlins v. Stanley, 207 Kan. 564, 567, 486 P.2d 840, we held that under our present intervention statute, K.S.A.1972 Supp. 60-224(a), the right to intervene depends on the concurrence of three factors: (1) Timely application; (2) a substantial interest in the subject matter; and (3) lack of adequate representation of the intervenor's interests.

At the time appellant's first motion to intervene was filed its interest was being represented by the city; there is no showing in the record on appeal of inadequacy of that representation although appellant apparently sought to convince the trial court that was the fact. The trial court found that the representation was adequate. No abuse of discretion in that ruling appears.

Appellant further asserts error in the denial of its second motion to intervene. The law is well settled with respect to appellant's interest in the subject matter of the action-the rezoning of land close to property owned by its members. In 101 C.J.S. Zoning § 352, p. 1184, this statement appears:

'Intervention. Property owners in the vicinity of the affected land, and other interested persons may, in a proper case, be permitted to intervene as parties in a proceeding to review a decision of a zoning body. . . .'

Our cases are in accord with the foregoing principle (see, e. g., Moyer v. Board of County Commissioners, 197 Kan. 23, 415 P.2d 261).

When appellant filed its second motion to intervene it was apparent that representation of its interest had come to an end-by moving to dismiss the appeal the city was simply withdrawing from further litigation. The third requisite is that the application to intervene be made timely. Here it was made the next day after the city had filed its motion to dismiss and before the motion had been acted upon.

This court dealt with the subject of intervention in a zoning controversy in a somewhat analogous situation in Moyer. There the zoning authority, the board of county commissioners, had denied the request of certain landowners to rezone their property. The landowners brought mandamus in district court to compel the board to grant the proposed rezoning, alleging the board's denial order was unreasonable and arbitrary. During the trial counsel for certain adjoining landowners, who objected to the proposed rezoning, was permitted to sit at the counsel table and assist the defendant board's attorney. The trial court found the board's denial order was unreasonable and discriminatory and ordered the proposed rezoning to be granted. The board's attorney informed the adjoining landowners in open court that the board would not file a motion for new trial and would not take an appeal. The adjoining landowners then filed an application to intervene as defendants for the...